No. 90-279 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

JON E. LEE, Claimant and Appellant,

GROUP W CABLE TCI OF MONTANA, Employer, and PACIFIC EMPLOYERS INSURANCE CO., Insurer and Respondent.

APPEAL FROM: The WorkerstCompensation Court of the State of Montana, The Honorable Timothy Reardon,Judge presiding.

COUNSEL OF RECORD: For Appellant: Richard J. Martin, Esq., Alexander, Baucus &

Linnell, Great Falls,Montana

For Respondent: William 0. Bronson, Esq., James, Gray &

McCafferty, Great Falls,Montana

Submitted on Briefs: October 19, 1990 Decided: November 8, 1990 Filed:Chief Justice J. A. Turnage delivered the Opinion of the Court. Jon E. Lee appeals the judgment of the Montana Workers1 Compensation Court, which held that Lee's 1986 back injury, sustained in the course and scope of his employment, was not the proximate cause of his current permanent partial disability. Rather, the courtheld that Leelscurrent disability resulted from a separate injury occurring on January 25, 1989, and denied Lee indemnity benefits for his current disability under 55 39-71-703 to -709,MCA (1985). We affirm. Lee raises the following issues on appeal: 1. Did PacificEmployers InsuranceCompany sustain its burden of proof that a subsequent injury caused Lee's disability? 2. Did Lee's subsequent 1989 injury extinguish a permanent partial disability entitlement from his previous 1986 injury? Jon E. Leehasbeen employed by a cable television company in Great Falls, Montana, since 1973. Lee was originally hired as an installer,laterpromoted to a servicetechnician,and for thepast fourteen years, has served as a system technician. All of these employment positions involve physical, outdoor duties. Lee reported back injuries on threedifferent occasionswhile in the course and scope of his employment. First, on June 14, 1984, Lee injured hisback while replacing defective cable located under a driveway at a Great Falls residence. Lee filed a claim for compensationwith theMontana Division ofWorkers1Compensation on December 20, 1984. Lee's treating medical physician, Dr. John 2Molloy, diagnosed Leelsinjury as muscle tension and prescribed muscle relaxants for his condition. According to his claim for compensation, Lee missed eleven days of work from this injury. Second, on August 15, 1986, Lee injured his back while replacing cable in a four-foot-deep trench. Lee filed a claim for compensation with the Montana Division of Workers' Compensation around August 29, 1986. Lee obtained the services of Dr. William Pardis, and later Dr. Jim Pardis,both chiropractors. Dr. William Pardis initially diagnosed Lee's injury as lumbar radiculitis,and prescribed manipulation treatments. Dr. Jim Pardis concurred in this diagnosis. Lee received 232 chiropractic treatments from the chiropractors over a period of about threeyears,these treatments being labeled primarily as maintenance treatments. Lee returned to work on the day following this injury according to his filed claim for compensation. Third, on January 25, 1989, Lee injured his back on the job while unloading a thirty-eight-pound piece of equipment known as a sweeper from his truck. Lee filed a claim for compensation following this incident. Dr. Jim Pardis stated that this injury

was both an exacerbation of the 1986 injury and a new injury because itwas in the same location in theback but more extensive. Unlike the two previous injuries, Lee missed approximately three months of work following this 1989 injury. An independent medical examinationwas conductedby Dr. Robert Chambers, an orthopedic surgeon, on March 9, 1989. Dr. Chambers 3diagnosed Lee to have chronic lumbar strain syndrome. When asked if he thought Lee's disability was caused by a recurrence of the

same condition or an aggravation or increase of a condition, Dr. Chambers responded: I think to analyze Mr. Lee's case from my standpoint, Iwould say thathewas treated in the so-called conservative or standard way by Dr. Molloy back in the early 19801s,and yet he was not rehabilitated or treated with the view of prevention and correcting theunderlying deficits, which I think inmost cases, as I said, are relative weakness of the trunk muscles and a lack of knowledgeof proper body mechanics and work skills related to that. And I would look at it that way, rather than saying this is an injury that he had for six or sevenyears. An injury is an incident, to my mind, and an injured part heals itself. UnderwritersAdjusting Companywas thecarrier at risk for the 1984 injury,which is not the subject of this litigation. Pacific Employers InsuranceCompany (Pacific)isthe insurer forLee's 1986 and 1989 injuries. Medical benefits have been paid by Pacific on both injuries. On July 17, 1989, Lee petitioned the court for trial stating that his 1986 injury resulted inapermanent partial impairment and that he was entitled to indemnity benefits under 55 39-71-703 to -709,MCA (1985), statutesamended or repealedby the 1987Montana Legislature. At Lee's trial, Dan Schara, a certified rehabilitation counselor, testified regarding Lee's vocational assessment. Schara, who was unaware of Lee's 1989 injury when he made his report, opined that due to Lee's current disability, Lee would beunable to continueworking at his present job, and his pre-injury labor market was reduced by 67percent. On May 15, 1990, the court found that Lee's ''current disability, is related to his January, 1989 injury" and thereby, any laws in effect in 1986 were inapplicable to Lee's current disability. From this decision, Lee appeals.

1. Did PacificEmployers Insurance Company sustain its burden of proof that a subsequent injury caused Lee's disability? Theunderlying question in both issues presented on appeal is whether Lee's1986 injury or his 1989 injuryproximately causedhis current permanent partial disability. If it were held that Lee's 1986 injury proximately caused his current disability, Lee would be entitled to either receive, 1)benefitsbased onhis actual loss of earning capacity or, 2) indemnity benefits based on his prospective loss of earning capacity under the 1985 Workers' CompensationAct; theseprovisionswere amendedby the 1987Montana Legislature. Thus, Leewould receive morebenefits if itwereheld that his 1986 injury proximately caused his current disability. Lee first argues that Pacific failed to prove that Lee's disabilitywas caused by his 1989 injury. Pacific disagreeswith how Lee framed this issue. Pacific argues that in order for the burden of proof to shift to Pacific, Leemust first prove thathis 1986 injury was the cause of his current disability entitling him to indemnity benefits under 8s 39-71-703 to -709, MCA (1985). 5Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 483-84, 512 P.2d 1304,1312-13. Pacific furtherargues that Lee failedtomeet this burden of proof. We agree. In reviewing a decision of the Workers1 Compensation Court, the standard of review is whether substantial credible evidence exists to support the court's findings of fact and conclusions of law. OfBrienv. Guaranty Fund Services (Mont. 1990), 47 St-Rep. 251, 254 (citationsomitted). Clearly, the evidence in this case does not support the premise that Lee's 1986 injury was the proximate cause of his current disability. Rather, the evidence establishes a direct link between Lee's 1989 injury andhis current disability. Lee returned towork theday followinghis 1986 injury and worked steadily until the 1989 injury, nearly two and one-half years later. Following his 1989 injury, Lee missed approximately threemonths ofwork, this evidence indicating the significanceof his 1989 injury in relation to his current disability. Medical testimonyby Dr. Pardisand Dr. Chambers indicate that Lee suffered two back injuries. Dr. Pardis stated that Lee's 1989 injury was both an exacerbation of the 1986 injury a new injury. Dr. Chambers stated that Lee suffered two injuries and that "[aln injury is an incident, to my mind, and an injured part heals itself." Lee further argues thathis 1989 injurywas a Mrecurrencell of his 1986 injury as opposed to being a separate event. Lee's argument has no merit in light of Belton v. Hartford Accident & 6Indemnity Co. (1983), 202 Mont. 384, 387-89, 658 P.2d 405, 408- 09, whereweheld that liability for ultimatedisability would rest upon the injurywhichhad not reached a state of "maximumhealing." In Belton, the claimant suffered two back injuries while in the scope and course of his employment, each injury covered by a different insurer. The claimant suffered a permanent total disability following the second back injury. The two insurance companieswere the litigants in thismatter, with the issuebeing which company was liable for the benefits to the claimant. This Court held that the insurer at the time of the second injury was liable for benefits relating to a permanent total disability when the claimant reached "maximumhealing" from his first back injury prior to the time of the second back injury. 

### "' [MIaximum healing'



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# . . conveys the message that the claimant's condition ha[s] arrived at a point where it [will] get no better even though the claimant 

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# . still [has] symptomsof the injurywhether it be an objective sign or a subjective symptom such aspain." Belton, 658 P.2d at 406. Although Belton dealt primarily with the issue of liability between two insurance companies,the "maximumhealing" rule canbe applied here to determine which injury proximately caused Lee's currentdisability. Here,Lee lostnowork time followinghis 1986 injury. Nearly two and a half years elapsed between the 1986 injury and the 1989 injury;although Leedid reportoccasionalpain and other incidences of discomfort in 1986 and continuedmanipula7tive treatments with Dr. Pardis, Lee continued to perform his normal work duties steadily up until his January, 1989, injury. Based on the above, we hold that substantial evidence exists to conclude that Lee reached llmaximum healing1'from his 1986 injury prior to his 1989 injury, and therefore,Lee's 1989 injurywas the proximate cause of his current disability.

2. Did Lee's subsequent 1989 injury extinguish a permanent partial disability entitlement from his previous 1986 injury? Alternatively, Lee argues that even if his 1989 injury is deemed a separate injury, he is still entitled to indemnity benefits under 39-71-703 to -709, MCA (1985), for his 1986 injury. Lee's argument lacks merit, aswe have already determined that Lee's permanent partial disabilitywas proximately caused by his 1989 injury. Moreover, as Pacific's brief indicates, the uncontroverted facts of this case reveal that Lee lost no time from work as a result of his 1986 injury. Although he continued to report instances of pain and discomfort, he lost no work wages from his 1986 injury. No effort was made in the months after his 1986 injury to evaluate his functional capacities, measure his labor market, and otherwise make a determination of what future loss of earning capacityhemight have as a result of this injury. Rather, all such data was gathered after Lee's 1989 injury, the injury which resulted in Lee's approximate three-month absence fromwork, 8and according to Lee, resulted in themost pain and suffering. We thereforeuphold the Workers1Compensation Courtls holding that any benefits owed to Lee for his permanent partial injury are subject to the laws in effect at the time of his 1989 injury. Affirmed.

We concur: